‘Occupy’ protests protected, with limits

UHLC and ADL host discussion on ‘Extremism in a Civil Society.’

Panelists Frederick M. Lawrence, left, Erwin Chemerinsky, and Marvin D. Nathan examined First Amendment and free speech rights in general and specifically as they pertain to public and private schools during a program at the University of Houston Law Center.

Nov. 18, 2011 – Occupy movement demonstrators have the right to protest in public places, but the First Amendment doesn’t give them the right to stay around the clock, two experts on freedom of speech and civil rights issues agreed while guest lecturers Friday at the University of Houston Law Center.

“They have the right to be there,” said Erwin Chemerinsky, founding dean of the University of California, Irvine School of Law, “but they don’t have the right to be there 24 hours a day.” Frederick M. Lawrence, president of Brandeis University, agreed, saying city officials “have the right to say, ‘You can’t sleep in the park at night.’ ”

The two eminent scholars spoke at a program co-hosted by the Law Center and the Houston-regional Anti-Defamation League. “Extremism in a Civil Society,” examined First Amendment and free speech rights in general and specifically as they pertain to public and private schools.

In introducing the two speakers, Law Center Dean Raymond T. Nimmer said the program had been in the planning stage for a long time, but noted it could not have been more timely with the upcoming presidential election and other events at home and abroad.

Chemerinsky outlined the basic principles of free speech, one of which is the government’s right to impose reasonable restrictions on time and place. There must be a place to hold demonstrations, he said, but the government doesn’t have to provide a place to camp.

Chemerinsky noted other free speech principles, including:

Applies only to public institutions, for example schools, not private

Can’t make content- or viewpoint-based restrictions. For example, can’t pick and choose between pro- and anti-war demonstrations

Can’t restrict if simply offensive or even very offensive

There are narrow categories of speech that are unprotected, for example, incitement of illegal activity, making threats, and causing a clear and present danger (shouting “Fire!” in a crowded theater)

Restrictions must be clearly drawn and not overly broad

“We don’t need the First Amendment for speech we like,” Chemerinsky concluded. “What we really need the First Amendment for is the speech we detest.”

Lawrence noted that because Brandeis is a private university, “We operate in the shadow of the First Amendment,” and can say and do what leadership wants. He said the university could restrict content and ban offensive speech, but, “The fact that we can doesn’t mean we should.” The purpose of four years of college, he said, is to challenge students with different views and ideas in open discussion “within the confines of civility.” The school has excluded people from campus, including members of the Westboro Baptist Church who rally against homosexuality with obscene signs and picket military funerals with anti-American slogans. And, Lawrence said he believes burning a stack of Korans is protected, “but I wouldn’t let it happen on the Brandeis campus.”

The program was moderated by Nimmer and Marvin D. Nathan, former chairman of the ADL's National Civil Rights Committee and a 1966 Law Center graduate. It was coordinated by Jodi Bernstein, senior associate director of the Houston-regional ADL, and underwritten by the law firms of Nathan Sommers Jacobs and Berg & Androphy.

Marvin D. Nathan, left, Erwin Chemerinsky, Frederick M. Lawrence, and University of Houston Law Center Dean Raymond T. Nimmer, discussed the First Amendment and "Extremism in a Civil Society" in a program sponsored by the Anti-Defamation League and the Law Center.